Accusing a scientist of conducting his research fraudulently is a factual allegation that can be proven true or false, not mere hyperbolic opinionating. If it is false it is defamatory, and if it is made with actual malice it is actionable. So said DC Superior Court Frederick Weisberg in tossing out motions by defendants National Review et al. to dismiss Prof. Michael Mann's defamation complaint -- thus moving the case a step toward discovery proceedings and a jury trial.
[Our apologies for the lag time in moderating, posting, and replying to comments on this post that were submitted through mid-afternoon January 23. Couldn't be helped.]
The matter before the court in this latest step of the thus-far procedurally rather tangled case was on the separate special motions of defendants Mark Steyn and National Review, Inc. and of defendants Competitive Enterprise Institute and Rand Simberg to dismiss Michael Mann's amended defamation complaint. On January 22 DC Superior Court Judge Weisberg denied defendants' motions to dismiss under the DC Anti-SLAPP Act and on one other ground.
The judge's ruling, and specifically what he says in his order, looks good for Prof. Mann's position. Here's a bit of what Judge Weisberg said:
Opinions and rhetorical hyperbole are protected speech under the First Amendment. Arguably, several of defendants’ statements fall into these protected categories. Some of defendants’ statements, however, contain what could reasonably be understood as assertions of fact. Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable. Viewing the allegations of the amended complaint in the light most favorable to the plaintiff, a reasonable finder of fact is likely to find in favor of the plaintiff on each of Counts I-VI, including the Intentional Infliction of Emotional Distress alleged in Count VI as to both sets of defendants.
So much for the argument that what Simberg and Steyn were doing was mere opinionating, mere rhetorical flourishes. Judge Weisberg appears to slam dunk that position. It's against the law to accuse someone, with malice, of scientific fraud, if the accusation won't stand up in court (and not just to the satisfaction of the defendants and their support subculture).
Weisberg continued (underlining added):
In Count VII, plaintiff alleges that CEI published, and National Review republished, the following defamatory statement: “Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.” The allegedly defamatory aspect of this sentence is the statement that plaintiff “molested and tortured data,” not the rhetorically hyperbolic comparison to convicted child molester Jerry Sandusky. ...
The statement “he has molested and tortured data” could easily be interpreted to mean that the plaintiff distorted, manipulated, or misrepresented his data. Certainly the statement is capable of a defamatory meaning, which means the questions of whether it was false and made with “actual malice” are questions of fact for the jury. ... [T]o state as a fact that a scientist dishonestly molests or tortures data to serve a political agenda would have a strong likelihood of damaging his reputation within his profession, which is the very essence of defamation. ...
Well that's interesting. Commenters on the case have focused on the rhetoric of the Jerry Sandusky analogy, while perhaps not keeping their eye on the "molested and tortured data" part. The defendants and their support subculture have been throwing around this sort of casually malicious and intellectually sloppy defamation of climate scientists so much, for so long, that perhaps they're surprised to learn they can be busted for it.
Viewing the alleged facts in the light most favorable to plaintiff, as the court must on a motion to dismiss, a reasonable jury is likely to find the statement that Dr. Mann “molested and tortured data” was false, was published with knowledge of its falsity or reckless disregard of whether it was false or not, and is actionable as a matter of law irrespective of special harm. ...
Turning to the special motion of defendants National Review and Steyn to dismiss Count VII, when Mr. Steyn republished Mr. Simberg’s words, he stopped short of wholeheartedly endorsing the offensive Sandusky metaphor. Nevertheless, Mr. Steyn did not disavow the assertion of fact that Dr. Mann had “molested and tortured data,” and he added insult to injury by describing Dr. Mann as “the man behind the fraudulent climate-change ‘hockey-stick’ graph.” ... In context, calling Dr. Mann’s work “fraudulent” is itself defamatory...
Supporters of the defendants made a point of accusing the previous judge in the case of incompetence and other bad things. It will be interesting to see if they continue to play that card by slamming Judge Weisberg as well. They seemed to think the previous judge's rulings would be trashed and re-done, but as it turns out they got essentially the same thing from Judge Weisberg in this new ruling.
We hope this ends the roadblocks to moving on to the discovery phase. The defendants may appeal Judge Weisberg's ruling, but the opportunities for delay seem to be running out. We have the impression that National Review and the Competitive Enterprise Institute aren't particularly eager to be opened up to discovery. On the other hand, Prof. Mann apparently isn't too worried about it as he pushes his case forward -- contrary to what his attackers always seem to assume.
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Briefly, on how this case got started, from a post at Climate Progress:
The kick-off for the lawsuit was actually a piece written by Rand Simberg at the Competitive Enterprise Institute (CEI), which referred to Mann as “the Jerry Sandusky of climate science” because he “molested and tortured data in the service of politicized science.” The editors eventually removed the offending sentences, but not before Mark Steyn picked them up at National Review’s online blog. Steyn said he wasn’t sure he’d have “extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point.” He then went on to call Mann’s work on the famous “hockey stick” graph “fraudulent.” So Mann sued Simberg, Steyn, CEI and National Review for defamation.
Rabett Run: Mann vs Steyn Lurches Forward
Jonathan Adler at the Washington Post online: Mann v. Steyn -- Mann wins round two
Earlier CSW posts on the case:
DC judge denies another effort to derail Michael Mann's defamation lawsuit (September 13, 2013)